Why Piracy Is Not Terrorism

by Kevin Jon Heller

Douglas Burgess, Jr., has an editorial in today’s New York Times arguing that piracy should be considered terrorism in order to facilitate its prosecution. It’s an interesting piece, but I have to take issue with the basic premise of his argument:

Are pirates a species of terrorist? In short, yes. The same definition of pirates as hostis humani generis could also be applied to international organized terrorism. Both crimes involve bands of brigands that divorce themselves from their nation-states and form extraterritorial enclaves; both aim at civilians; both involve acts of homicide and destruction, as the United Nations Convention on the High Seas stipulates, “for private ends.”

In short, no. The defining feature of terrorism is precisely that it is committed not for private ends, but to intimidate a civilian population or to influence government policy. Indeed, over the long and troubled history of efforts to create a general definition of terrorism, that is perhaps the only aspect of the definition that has never seriously been in doubt. Two examples — and many more can be found here: in 1937, the League of Nations Convention defined terrorism as “[a]ll criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public,” and in 2004 the Security Council unanimously defined terrorism in Resolution 1566 as “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act.”

25 Responses

I absolutely agree with you that piracy is not equivalent to terrorism and therefore that pirates are not terrorists. However, one premise of the argument also severs the notion of terrorism from nation-states and that doesn’t work either. As Robert Goodin makes clear in What’s Wrong With Terrorism (2006),

“states and state officials can practise terrorism, too. There is nothing in the concept itself to preclude that possibility. And there is much in the historical record to demonstrate that the possibility is a real one. States have practised terror both against citizens of other states in time of war and against their own people. Furthermore, states and state officials have been complicit in the terrorism of others, by aiding and abetting terrorist groups. Complicity with terrorism is a form of terrorism, too.”

We need only think back to the Vietnam War to appreciate the fact that “terrorizing civilian populations has long been part of warfare,” And it’s equally true that the

“fire-bombing of Dresden and Tokyo by Allied forces was terrorism pure and simple. The targets were of no direct military value. The aim was to demoralize enemy non-combatants, ‘to kill civilians in such large numbers that their government is forced to surrender.’ So too, arguably [I don’t think it’s arguable], was the dropping of the atomic bomb on Hiroshima and Nagasaki–which the Chairman of the combined British/American Joint Chiefs of Staff and Chief of Staff to the US President insisted at the time ‘was of no material assistance in our war against Japan.'”

None of this of course excludes the possibility that pirates may aid terrorists (by selling to the highest or even first bidder, for example) and thus that those concerned with the prevention of terrorism should also be concerned with the prevention of piracy, but it will not at all do to conflate the two criminal phenomena.

12.05.2008
at 6:24 pm EST Patrick S. O'Donnell

I hate to say it, but it seems to be rather insulting to actual victims of terrorism to say that a pirate is a terrorist. Pirates have an anarchist theme about them, whereas terrorists tend to have a political or religious agenda. The more broadly we start defining “terrorism” the less of a stigma the word retains. And I am pretty sure it is in the best interest of the international community to ensure the “terrorist” label retains its stigma, in order to dissuade any wannabe terrorists.

Republicans swing both ways; the most accurate description is simply gangster. These linguistic wrangles are really depressing. They’re never about getting things straight, but manufacturing excuses. Why is it necessary to suppose piracy and / or terrorism are anything more or less complicated than crimes such as assault, robbery, mayhem, and murder, etc?

Any objective definition will lead inevitably to the discovery that 9/11 was not an act of terrorism. It did not achieve and none of the available evidence suggests that it was intended to “create a state of terror in the minds” or “to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government “. What evidence there is shows that Bin Laden planned a series of escalating attacks on Americans for the purpose of making us mad and triggering a military response against him.

Bin Laden arrived in the middle of the Afghan war against the Soviets. With no military training or aptitude, he saw things from a religious point of view. Afghanistan was a location given to Islam by Allah where religiously motivated volunteers could defeat the heavy armor of a modern infidel superpower. He was enraged by US forces in Arabia, but knew that they could not be defeated in the deserts. So he returned to Afghanistan and through the Khobar and embassy bombings, the Cole, and 9/11 he sought to trigger a US invasion of Afghanistan. His mistake was that he assumed the US would send tanks through the long, narrow mountain roads that were easily mined, like the Soviets did. He did not imagine a war of Special Forces and JDAM bombs, and he was not prepared when his former Afghan allies simply deserted him.

That means that 9/11 was a military attack by hand picked soldiers in a unit of the Afghan army. It was a military strategy by an inferior force to defeat a superior enemy by triggering a counterattack on prepared defenses and strong points. Had the 9/11 hijackers dressed in uniform, stolen empty planes on the ground, and crashed them into the same targets, then later on when an objective history is written it would have been remembered as the most successful attack against a vastly superior force by a small military unit since some Greek soldiers stuffed themselves into a wooden horse.

However, history will note that the hijackers were either too lazy, too cheap, or too stupid to learn how to take off and land a plane. If all they knew was how to fly straight and level, then they had to hijack passenger planes already in the air. That is “air piracy”, and that made them pirates and criminals. Even the subsequent attack on the Pentagon, a military headquarters, could not be regarded as lawful combat once they stooped to such unlawful and dishonorable means.

War is terror. When the US tries to “intimidate a population or compel a government … to do or to abstain from doing any act”, we call it Shock and Awe and feature it on TV like it was a Superbowl halftime show. There is no War on Terrorism. The enemy are not terrorists. The enemy is the army of the former government of Afghanistan. It is an enemy that has not been defeated and an army that is still in the field engaged in combat. They are light infantry and guerrilla fighters. They are not and never have been terrorists, no matter how convenient it has been for several administrations to do nothing and excuse the inaction because they were “just terrorists.”

When the mastermind of 9/11 and his associates go on trial, the US would be better off to charge them with piracy and mass murder. Those charges apply and they have no political overtones. If we charge them as terrorists, then they will call us terrorists and the whole trial will be turned into political theater.
So while pirates may not be terrorists, our best known “terrorists” are really pirates.

12.06.2008
at 2:17 am EST Howard Gilbert

Charles,

Aren’t the “linguistic wrangles” at least sometimes about “getting things straight”? Indeed, I think there is need for conceptual clarification if the term terrorism is to have, as I suspect it should, distinct moral and legal meaning (you seem to agree: ‘it’s time get clear on the concepts’). Of course linguistic wrangling is often a proxy for larger ideological and political battles and thus is more or less interminable.

And thanks for mentioning the use of “anarchist” as an abusive epithet, as piracy and anarchism (as a social movement and ‘political’ theory) have little or nothing in common. In fact, in the history of anarchism, comparatively few self-described anarchists have resorted to political violence, and even fewer have resorted to terrorist tactics, although those in the latter category did much to forever tarnish the popular image of anarchism. As Richard Sonn reminds us,

“anarchism was more than a political theory of freedom from domination by any and all authority; it was a faith, and a way of life that exercised a powerful hold over the imagination. People did not simply understand anarchist ideas; they lived them. There has always been an existential element to anarchism that transcends dogma. [….] Not only were anarchist thinkers of a century ago often more accurate than socialists in judging the revolutionary potential of the oppressed, they also better foresaw the human and political implications of a revolutionary siezure of power and its institutionalization in a one-party state. [….] Revolution was suspect for its devotion to politics and its exaltation of leaders who would be corrupted by the temptations of power. Spontaneous insurrection was more to the anarchists’ liking, implying as it did the direct action of the people, but in the aftermath of the government repression of the 1890s, they were well aware of the power of the state to put down popular uprisings. There were always social and cultural alternatives: one could organize free schools, write for anarchist newspapers, sing rebellious songs in anarchist cabarets. All these things anarchists did, but they still sought new methods of attacking the power structure while involving the working masses in anarchist alternatives.”

Murdering more than 3,000 civilians would have been seen as the most remarkable military attack of the past thousand years if only the hijackers had worn uniforms and crashed empty planes? I’m sorry, but that is as vile as it is ridiculous.

And by the way, your comment that 9/11 wasn’t an act of terrorism refutes itself. When you admit that “[w]hat evidence there is shows that Bin Laden planned a series of escalating attacks on Americans for the purpose of making us mad and triggering a military response against him,” you admit that 9/11 was terrorism. Intending to trigger a US military response more than satisfies terrorism’s “compel a government… to do or to abstain from doing any act” requirement.

Arguments like the ones in this comment do nothing but discredit the left in the US. Please, do me a favor and get off my side of the political spectrum.

To Whom It May Concern at the Blog: I posted something last night/early this morning and it appears the blog ate it somehow. Is it possible for someone to look for it and post it for me?

Thanks,
Patrick

12.06.2008
at 9:11 am EST Patrick S. O'Donnell

On March 10, 1945 a formation of 330 B29 bombers appeared over Tokyo. They carried incendiary bombs based on the newly developed Napalm. The resulting firestorm destroyed 16 square miles of the city. It left a million people homeless and killed 100,000 civilians, mostly women, children, the old and infirm who could not run fast enough. Today we don’t call Truman a murderer.

“Murdering more than 3,000 civilians would have been seen as the most remarkable military attack …” I did not say that. I said that if the enemy soldiers had conducted the attack in uniform, as the B29 air crews did, and if they used what were universally recognized as lawful means, then the attack would not have been murder, although the same 3000 people on the ground (but none of the passengers and crews of the planes) would have died.

On 9/11 the most powerful nation in the world was attacked by 19 men armed only with box cutters. They severely damaged the US military headquarters in the Pentagon, something that the Germans and Japanese were unable to do during WWII, and the Vietnamese and Chinese were unable to do in subsequent wars. They also attacked the most prominent symbol of America’s financial power that underwrites its military power. If they had executed the operation lawfully, they would have every right to go down in military history. The 3000 American dead would have been a small number compared to Dresden, Tokyo, Hiroshima, or Nagasaki. The targets hit precisely on 9/11 were more legitimate wartime targets than the US had in those cities.

This was not a sneak attack. They were soldiers in the army of a country that had declared war on the US twice, in Aug 1996 and again in Feb 1998. In Oct 2000 that army executed the quintessential act of war by attacking a US warship, but the President and all the news media misclassified this as a “terrorist attack”.

If the twin towers had been hit by cruise missiles from an Afghan submarine, or been bombed by an Afghan F-16, the same 3000 people would have died. So if enemy soldiers dressed in uniform during a declared war infiltrate the US and steal empty planes and use them, because their country has no submarines, or cruise missiles, or F-16s, then that is simply successful military improvisation.

This isn’t an ideological position. It isn’t left wing or right wing. It doesn’t even say anything about what I believe. Today I can discuss Rommel as a brilliant military leader without being a Nazi. During WWII it probably would not have been popular to compare Rommel with history’s other great generals. Today we can talk about the brilliant military victory at Dien Bien Phu without being accused of being a Communist. If it is unamerican to simply point out that soldiers in an enemy army were soldiers in an enemy army, then we have serious problem.

We sit around our TV sets and watch US planes bomb the capital of another country. On 9/11 we saw what happens when the tables are turned. That attack happened to be conducted using criminal methods, and so we can agree that it turned out to be mass murder. But it didn’t have to be. Americans have been lucky to avoid the massive destruction of other wars, some of which we created. It is hypocritical for us to become indignant when we receive a piece of the treatment we have been dishing out to others for decades.

At the start of the Battle for Britain, the German airforce concentrated on British airfields and military targets. The RAF was in danger of being wiped out. Then a German bomber accidentally dropped its load on London, and the British responded by bombing Berlin. Hitler flipped out and ordered all bombing be directed at London, but that reduced pressure on the RAF and allowed it to recover and eventually win. The Blitz may have been a British strategy to gain military advantage at the cost of massive suffering by their own civilian population. Nobody counts the number of Russian serfs who starved to death because of General Kutuzov’s brilliant strategy to defend against Napolean. We have taken a more objective view of the massive casualties caused by the Soviets in their own defense of Stalingrad. War is a nasty business. We don’t have to try to make the enemy even nastier by all agreeing to call them “terrorists” instead of soldiers. They are bad enough no matter what name you use.

12.06.2008
at 1:00 pm EST Howard Gilbert

I don’t know what is more pathetic: (1) trying to justify 9/11 by invoking morale bombing during WW II — a particularly revolting invocation of tu quoque — or (2) knowing so little about IHL that one believes the WTC was a legitimate military target, or (3) wanting to engage in counterfactuals that would somehow magically transform 9/11 into, and here I quote, “the most successful attack against a vastly superior force by a small military unit since some Greek soldiers stuffed themselves into a wooden horse.”

I did not try to justify 9/11, just to point out it was an attack by soldiers. I would not justify the invasion of Poland that started WWII, or the invasion of Belgium that started WWI. Unprovoked military aggression is not justifiable. Insisting that 9/11 was piracy and not terrorism does not excuse it or even make it less criminal.

I did not say the WTC was a legitimate target. I did say it was no less legitimate than Dresden or, for a more recent example, the al-Saa restaurant in Baghdad that a US B-1 attacked with four JDAM bombs in the mistaken belief that Saddam was eating dinner there. If military forces attack an unlawful target, IHL declares that to be a “war crime”, not terrorism.

In the larger propaganda war the WTC was a symbol of “Wall Street” and in the streets of Pakistan, Wall Street is the core of American military power. You will have a problem explaining in Peshawar how the US can bomb Baghdad legally, but an attack on the US is automatically unlawful.

Getting the charge right and choosing a court that actually has jurisdiction over a case should be a legitimate issue. If you charge KSM with terrorism, the rest of the trial is going to be a long tirade in which KSM drags out everything the US has done in every war everywhere in the world. The idea of planes as a poor man’s cruise missile may not appeal to you, but it will resonate throughout the Middle East. He will be seen as a hero fighting against the big, bad US and the 3000 US murder victims will get lost in the rhetoric.

We don’t have to open this defense and shoot ourselves in the foot. We don’t have to turn the trial into a legal victory and public relations defeat. Charge KSM with piracy. Concentrate on the passengers and air crews who died.

12.06.2008
at 3:03 pm EST Howard Gilbert

Howard,

You did indeed say that the WTC was a legitimate target:

Had the 9/11 hijackers dressed in uniform, stolen empty planes on the ground, and crashed them into the same targets, then later on when an objective history is written it would have been remembered as the most successful attack against a vastly superior force by a small military unit since some Greek soldiers stuffed themselves into a wooden horse.

A “successful attack” against a “vastly superior force.” And we are supposed to believe that you don’t think the WTC was a legitimate military target? What, were all the investment bankers packing heat?

Kevin and Howard have provided a good example of exactly the sort of wrangle I had in mind. Now I respect Kevin a lot and Howard tensds to really rub me the wrong way, but here I have some points of agreement and disagreements with both of them…

First, I have to second Kevin that the attack on the WTC is a clear war crime and or crime against humanity. Like so many other points of controversy the last seven years, for me, this one begins and ends with the IMT Charter:

“* * * The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”
IMT Charter, art. 6.

I don’t see much problem with condemning the 911 attack under all three categories, but where I have a problem with Kevin is where he denies that the Dresden and Tokyo fire raids (etc) were war crimes. They clearly were crimes in exactly the same sense that the Nazi air blitzes of Warsaw and Amsterdam were — the clear intent was to terrorize the civilian population by wanton acts with no valid military objective. If you argue that the US objective was to save lives by inducing surrender, the German argument is exactly the same — to hasten the conclusion of military operations — and you also run into the same problem with Al Qaeda. Since when does anyone need the permission of an enemy to wage war on them? And since when does your enemy get to dictate what is or isn’t a legitimate target for you?

It’s a mistake to call 911 anything but a crime — to treat it is an act of war merely plays into Al Qaeda’s game. OTOH, while I don’t acknowlege that Al Qaeda is a legitimate military force engaged in a legitimate war, the 911 attack was a brilliantly planned and executed attack that was far more effective than the sum total of the Bush administration’s response to it over the last seven years (military or otherwise).

The 3,000 people they murdered are the least of it, much as I feel for them and their families. This is something I avoid talking about in public, but it’s a big part of the reason I started opposing the Bush administrations polices to the exclusion of all other concerns in 2001 — the Bush administration is literally the best weapon that Al Qaeda has, not because they’re in league with each other, but because the Bush administration are clueless fanatics, criminals, and fools who are easy to manipulate in ways that are detrimental to the safety and well being of the United States. The results of the last seven years speak for themselves.

Now we’re about to find out how well the government of India plays the same game, and so far, not so good. Meanwhile, the Bush gang is just stuck in the same old rut. Obama has shown some hopeful signs, but the retention of Gates at DoD was a bad mistake.

Kevin – I think your statement about terrorism constituting a war crime is a bit overbroad. I think all that can be fairly said based on the sources you cite is that combatants in international armed conflict commit a war crime by conducting attacks intended to terrorize a civilian population. The treatise you link to is clearly describing acts committed by combatants, and the ICTY decision you cite specifically limits its holding to a violation of Additional Geneva Protocol I as treaty law, meaning that it, too, is explicitly confined to international armed conflict.

This makes perfect sense given that combatants in international armed conflict enjoy immunity from ordinary domestic law, leaving them essentially immunized for prosecution for ordinary terrorism offenses as defined in regular penal codes. But this does not establish a legal basis for concluding that ordinary terrorists can also be similarly prosecuted for war crimes unless one is willing to concede them combatant status.

To be even handed, I think Howard is also imprecise in terming the 9/11 hijackers as “pirates.” I agree that they are liable to prosecution for air piracy, but the relevant statute (49 U.S.C. sec 46502(a)(1)(A)) requires no particular motive, just a wrongful act. The actual crime of “piracy” has always explicitly required conduct for private gain, thus politically motivated takeovers of vessels on the high seas (e.g., the 1985 Achille Lauro hijacking) are not technically acts of piracy and must be prosecuted under other laws.

12.07.2008
at 12:51 am EST Dave Glazier

Charles,

Where, exactly, did I deny that the firebombings of Dresden and Tokyo were war crimes? To say that the defense of tu quoque is illegitimate is not to say that the other side’s acts were legal; it simply embraces the principle, taught to all children by their parents, that two wrongs do not make a right. (See, e.g., Israel’s constant defense of its war crimes by pointing out that its enemies commit war crimes, as well.)

12.07.2008
at 9:00 am EST Kevin Jon Heller

In 1945 some US air crews shot down over Japan were tried by local officials as murderers. When they claimed status as POWs under the Geneva Conventions, the court asserted that flying miles high and dropping incendiary bombs on civilians was not the way of the warrior. After the war we tried members of these courts as war criminals for what they did to our men.

If any country can declare an entire enemy army “terrorists” and then throw out international law, as Bush did with the Afghan army, then our military will be unprotected in future wars. It would be better if we simply banned the word “terrorist” whenever a country like Afghanistan is responsible. International law treats all countries equal, so the US is not a “real” country and Afghanistan a “third class” country. We have never faced an enemy that did not declare American soldiers and airmen to be “terrorists” and “war criminals”, but until now we insisted that name calling did not erase the obligation that other countries have to follow international law.

If Bush cannot simply declare the prisoners as “terrorists” so that he can use unlawful means to question them, then the left cannot assert that they are “criminals” subject to civilian laws and courts. These two claims are the right and left sides of the same coin. The truly conservative position is to admit that this is a war the same as all previous wars, against the former government of the country of Afghanistan and its army now in exile (as the Free French and Polish forces were in exile in Britain during WWII). The truly liberal position is that captured soldiers of foreign countries with non-Western governments and non-Western armies are entitled to the protections of international law even when they don’t dress and act like us.

Which is not to say that Bin Laden is not a terrorist for the operations that clearly were terrorist in nature, for the embassy bombings in Kenya and Tanzania or the attacks on markets and mosques in Iraq. KSM did not participate in those operations, nor did any of the low level front line soldiers captured by the Northern Alliance and now held in Guantanamo. They should be POWs, and then they can only be charged with war crimes like piracy and not political crimes like terrorism.

I misconstrued it to mean you thought the comparison was inapt, because I didn’t read Howard as actually trying to justify 911, even though I also find his contortions of LOAC quite repulsive at times. And I’m sick with a damned lingering virus that’s sort of like a mild flu that just makes everything totally BLAH, so I’m not parsing too good these daze.

The Tet Offensive of 1968 was a military defeat but a psychological victory. The enemy was superficially a non-state actor whose “black pajamas” did not constitute a recognized military uniform. They bombed civilian targets and killed local officials who cooperated with the central government. We did not call them terrorists at the time because the term was not popular. Today, as the title of the original post points out, it is common to use to the term for pirates and any other bad guy with a weapon. If Tet happened today, it would probably be called a terrorist attack.

I don’t think that any attempt to objectively classify Tet and the other VC operations, or to compare them with Tito’s Partisans in Yugoslavia or guerrilla operations in the Philippines during WWII means that one is siding with the enemy or justifying their attacks on US soldiers. Pointing out (on its anniversary) that Pearl Harbor was a military attack by the Japanese navy and not a terrorist attack does not justify what the Japanese did, it just classifies it correctly.

Right now KSM is in Guantanamo. He is responsible for the murder of 3000 Americans. Even if Obama closes the facility, we have to decide what to do with him. The two choices are to treat him like General Homma of the Bataan Death March, or treat him like Timothy McVey. Whichever choice you make, the defense is going to argue it was the wrong one. If the judge agrees that it is the wrong charge in the wrong court, then the very same people who refuse to discuss the question objectively or even admit there is a question will claim that someone else screwed up the prosecution. You may be disgusted with the arguments I raise, but they have to be considered. The prosecution must be able to justify their choices with more than a claim that even thinking about the question is “revolting”.

12.07.2008
at 1:41 pm EST Howard Gilbert

The etymology of the word pirate stems from Greek word peiran, meaning to try, to test, to push to the limit, or risk. Schmitt (in The Nomos of the Earth) points out that prior to the birth of the great sea empires there was no law to the sea -if sea-bordering peoples kept to the mountains, it was because on the open sea there were no boundaries, no limit, no property, no law. But with the development of the maritime nations, the pirate became an outlaw, an enemy of humanity who could claim no rights -the pirate became a hostis generes humani. In short, the pirate was the first terrorist.

12.07.2008
at 3:58 pm EST benjaminlozano

The two choices Howard?

There’s way more than two, not that there’s any actual problem here or anything — aside from the war crimes, incompetence, and demented ideological goo of the Bush administration and their supporters that is.

I doubt the Manhattan DA would need to think twice about a plan. Other than his plan to run for Governor after he convicted the guy on 3,000 counts of murder one, etc, maybe.

Perhaps we could just extradite him to Pakistan and let them try him?

Or how about we just release him and give him a one way ticket to the destination of his choice?

If David Addington, Dick Cheney, and George Bush really believed the lying fascist BS they’ve been spouting for seven years now they’d have him flown to Washington and Bush would order Addington to personally put a 9mm round in the back of his head at a Rose Garden summary-execution ceremony on national TV. The only problem with that plan is that they’re liars and cowards.

Generally, piracy is any illegal act of violence, detention, or depredation committed outside territorial waters for private (rather than political) ends by crew or passengers of a private ship or aircraft against another ship, persons, or crew. Inside territorial waters such crimes constitute armed robbery at sea and are the responsibility of the state. These definitions emerged from customary international law, the 1958 Convention on the High Seas, and the 1982 United Nations Convention on the Law of the Sea (UNCLOS), which has become the de facto constitution for the world’s oceans.

What i meant to point out above is that nowhere in the article does he link piracy to terrorism, or suggest that piracy should be included in any defenition of terrorism. They are each entirely their own animal.

Thus, now both Kevin and Michael have provided us with persuasive reasons for not accepting the proposition that “the pirate was the first terrorist.” Following Kevin’s original point and, again, with Goodin, terrorists intentionally employ a tactic of coercive intimidation for socio-political ends, thus, “they intentionally adopt the ‘production of generalized terror’ as a proximate end.” Neither historically nor in our own time should we think of pirates as identical to terrorists.

Of course the problem with the definition of piracy under customary international law, as Goodin also points out, is that “it has always been definitionally impossible for people who are acting on the authority of a state to commit an act that strictly speaking counts as one of ‘piracy.'” This is similar to the problematic definition of terrorism in the US Code that both the State Department and CIA rely on: states and their official agents can commit many wrongs strictly analogous to those committed by terrorism, perhaps; but they cannot commit the particular wrong peculiar to ‘terrorism,’ which is (as with ‘piracy’) doing those things ‘privately’ rather than on the authority of some state.” Yet,

“the American Law Institute Reporter is at pains to emphasize that state agents are not immune from blame for the pirate-like wrongs that they do, just because they cannot qualify as ‘pirates.’ Instead, those are wrongs that ‘are addressed by general principles of international law governing state responsibility for violations of international obligations.'”

Now, even if our definition of piracy was modified so as to allow the possibility for State actors to act as pirates, this would still leave us with more significant dissimilarities rather than compelling similarities between acts of piracy and acts of terrorism.

12.07.2008
at 7:52 pm EST Patrick S. O'Donnell

Pirates are criminals, not terrorists. What makes them “pirates” is the commission of their acts outside the scope of any state’s territorial boundaries. The same acts, committed within the boundaries of a state, would be ordinary crimes.

Unlike others, I’m happy to provide references for my comment. See, e.g., U.S. v. Smith, 5 Wheat 153 (1820) (“robbery and murder committed on the high seas shall be deemed piracy”) (also noting that the international law writes of the time deem piracy to constitute “depredation on the seas, without the authority of a commission, or beyond its authority” and citing, inter alia, Grotius, Puffendorf, and Vattel); Rex v. Dawson, 8 William III. (England, 1696) (“piracy is only a sea term for robbery, piracy being a sea term committed within the jurisdiction of the admiralty”); Convention on the High Seas, art. 15 (1958) (“Piracy consists of the following acts: (a) any illegal acts of violence of detention, or any act of depredation, committed for private ends by the crew of the passengers of a private ship or private aircraft, and directed: (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; …); UN Convention on the Law of the Sea, art. 101 (1982) (incorporating identical definition from Convention on the High Seas).

The CHS and UNCLOS definition, I should note, does make the “private ends” of the pirate a component of the crime. If Somali pirates were seizing ships in the Gulf of Aden for political ends, they might be terrorists. In that they are seizing them for ransom money, they’re pirates, and thus criminals.

12.11.2008
at 11:18 am EST Lieutenant Maynard

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